Case: Berentschot v. Ontario, 2026 ONCA 444 (CanLII)
Keywords: COVID-19; Rule 2.1.01 of the Rules of Civil Procedure
Synopsis:
The Appellant returns to Canada during the COVID-19 pandemic and is subjected to mandatory border requirements (e.g., “PCR” testing and the use of the “ArriveCan application”). She refuses to comply with certain requirements and is charged under the Contraventions Act, S.C. 1992, c. 47. The charge is “apparently later withdrawn”. The Appellant commences an action against various state actors (e.g., the Attorney General of Canada, the Attorney General of Ontario, and the Ontario Human Rights Commission) alleging violations of the Charter and various principles of international law; seeking declaratory relief, and damages in the amount of $366M. (See paras. 2-3).
The action is dismissed by the Motion Judge (Clyde Smith J.) pursuant to Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the basis that it is “frivolous, vexatious, and an abuse of process of the court”. (See para. 1). The Court of Appeal (Tulloch C.J.O., Lauwers and Miller JJ.A.) finds no basis to interfere with that decision. (See para. 5).
Importance:
The Court of Appeal emphasized that an assertion of Charter rights does not place a proceeding “beyond the reach” of Rule 2.1.01 and that the Superior Court’s “authority to control its own process is not displaced when a litigant makes a constitutional claim”. (See paras. 14-15; Ahmed v. Ontario (Attorney General), 2021 ONCA 427).
Regarding the Appellant’s constitutional challenge to s. 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, which requires Leave to proceed with “proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or a tort based on bad faith”, the Court of Appeal referred to its previous decision in Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172. For the Court, that decision “previously upheld the constitutionality of s. 17”. (See para. 21). However, more fundamentally, the Court determined that the validity of s. 17 “has no bearing on the correctness of the order” that dismissed the Appellant’s proceeding. (See para. 22).
Although the Court of Appeal acknowledged the Appellant’s submissions with respect to “challenges faced by self-represented litigants in navigating the justice system”, the Court found this did not provide a basis for appellate intervention. In the circumstances, the Court determined the Motion Judge committed no reviewable error and dismissed the appeal. (See para. 27).
By way of future guidance to self-represented litigants (and counsel) bringing constitutional claims/proceedings against the Crown, the Court of Appeal made the following key observations:
- Section 109(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 “precludes the granting of constitutional relief” where no notice of constitutional question is served. (See para. 23).
- “Constitutional challenges generally require a proper factual foundation, particularly where legislation is alleged to be invalid or unconstitutional”. (See para. 24; Guindon v. Canada, 2015 SCC 41 at paras. 20-23).
- Declaratory and systemic relief is “not properly before the court absent leave” under Rule 61.08(3). (See para. 25).
A helpful procedural ‘checklist’ to consult before bringing a proceeding against the Crown or its agents in Canada?
The Appellant (acting in person): Michelle Lorainne Berentschot
Counsel for the Respondents Attorney General of Ontario and the Ontario Human Rights Commission: Sara Badawi (Ministry of the Attorney General, Constitutional Law Branch, Oakville)
Counsel for the Respondent Attorney General of Canada: Emmett Bisbee (Department of Justice Canada, Toronto)